‘costs occasioned by adjournment of the trial’/ GST on disbursements

Hannover International Ltd v C W Robson; Mine & Quarry Equipment International v CW Robson; GF Robson v C W Robson & Anor [2012] QSC 47.

The appeal relates to the costs orders that the Plaintiffs pay the Defendants ‘costs as a result of the adjournment of the trial’ on an indemnity basis after the trial was adjourned after five days of hearing due to the plaintiff’s late disclosure.

Generally, courts will only interfere where the discretion appears not to have been exercised at al or to have been exercised in a manner which is manifestly wrong. The Pl’s contend that the discretion miscarried because he failed to give due weight to the importance of the proceedings to the Pl’s when considering what was ‘necessary and proper’.

The applicant argues that the costs assessor made three errors of principle which led to the costs being overstated:

(1) Manifestly erred by misapprehending the meaning of ‘costs occasioned by adjournment of the

trial’ and included costs which would have been incurred regardless of the adjournment.

(2) Allowed GST on disbursements without satisfying himself that there was a basis to claim.

(3) Failed to consider the matters required by r703 of the UCPR when considering identical items of

costs appearing in each costs statement.

In relation to (1) it was argued that that disclosure should have been made in any event and that the costs of reviewing it would have been incurred in any event and were not costs occasioned by the adjournment.

In regard to what was considered to be thrown away, McMurdo J, clearly left it to the costs assessors discretion. Therefore in order to succeed on this application the applicants need to establish that the assessor did not exercise his discretion or that he incorrectly did so. In this case Lyons J found that the assessor did exercise his discretion.

In assessing the costs ‘thrown away’ on an ‘indemnity basis’ the assessor was required to apply the criteria under UCPR r703. The determination of whether indemnity costs were reasonably incurred and of a reasonable amount involves consideration of all relevant circumstances.

In [34] Lyons J stated she could not find an identifiable error in the approach the assessor took. The assessor was clearly satisfied that it was not unreasonable to allow the inclusion of the work actually undertaken on the weekend before as well as the costs required to re-familiarise prior to the resumption of the trial.

In relation to (2) Lyons J states at [41] that it was clear from the costs assessor’s reasons that he queried the GST status of the costs applicant as an individual. This was because there was no GST claimed on outlays initially however, Counsel later confirmed that the client wanted to claim GST and instructions for an amendment were given to the costs consultant.

It was a matter for the assessor to satisfy himself of this purely factual matter and Lyons J saw no error of principle as the assessor clearly indicated that UCPR r720(4) provides that not only does the assessor decide the procedure to be adopted on a costs assessment but that the assessor is not bound by the laws of evidence or procedure and may be informed of the facts in any way they consider appropriate.

In relation to (3) Lyons J noted that the assessor stated in his reasons that he was swayed by the submission that appropriate apportionment had been made across the three Costs Statements and that he had made some reductions where there appeared to be a need for apportionment across the three documents. This showed that he assessed the aggregate of the costs claimed and found that they were reasonable.